Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9
PETITIONER:
UNION OF INDIA AND ANR. ETC. ETC.
Vs.
RESPONDENT:
PRATAP NARAIN AND ORS. ETC. ETC.
DATE OF JUDGMENT29/04/1992
BENCH:
KULDIP SINGH (J)
BENCH:
KULDIP SINGH (J)
SAHAI, R.M. (J)
CITATION:
1992 AIR 1363 1992 SCR (2) 957
1992 SCC (3) 268 JT 1992 (3) 423
1992 SCALE (1)979
ACT:
Civil Services-Indian Statistical Service Rules-Rules
8, 9C(a)-Grade IV-Seniority-Fixation of-Interpretation of
Judgment of Supreme Court in Narender Chadha’s case [1986] 1
SCR 211-"Post"-Construction of-Whether includes cadre post
or ex-cadre post.
HEADNOTE:
This Court in Narender Chadha and Ors. v. Union of
India and Ors., [1986] 1 SCR 211 decided the dispute
regarding seniority between promotees and direct recruits
belonging to Indian Economics Service and the Indian
Statistical Service and directed the Union Government, (i)
to treat all persons, stated to have been promoted contrary
to Rules, having been regularly appointed to Grade IV of the
Service; (ii) to assign them seniority form the date of
their continuous officiating in Grade IV posts; and (iii)
Even those promotees who were selected for regular promotion
in 1970, 1982 and 1984 to be assigned seniority from the
dates they commenced officiation continuously in Grade IV
prior to their selection.
The directions of this Court were implemented and a
seniority list of Grade IV of the Indian Statistical
Service, was issued on May 8, 1986. Consequent promotions to
Grade III were made vide Notification dated May 22, 1986.
The direct recruits in Grade IV of the Service
challenged the seniority list and promotions before the
Tribunal on the ground that the seniority list was in
violation of the directions of this Court in Narender
Chadha’s case, contending that the promotees who officiated
against "cadre posts" in the Service, alone were entitled to
the benefit of the period towards seniority and those who
officiated against "Ex-cadre posts" were not entitled to
such benefit.
The promotees and the Union of India contended before
the Tribunal that this Court in Narender Chadha’s case based
its conclusions on the reasoning that the promotees were
holding posts in the service for about
958
15 years and as such they could not be treated as ad hoc
appointees; that this Court did not make any distinction
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9
between the holder of a ‘cadre’ post or ‘ex cadre’ post;
that the promotees were to be treated regular members of the
Service from the date of promotion and as such whole of the
period of their service whether against cadre or ex cadre
post had to be counted towards seniority.
The Tribunal allowed the applications against which the
persent appeals and a writ petition were filed before this
Court by special leave by the promotees and the Union of
India.
On the question : whether the expression "posts" used
by this Court in Narender Chadha and Ors. v. Union of India
and Ors., [1986] 1 SCR 211 was "cadre posts" or it included
the Ex-cadre posts held by the promotees in the Indian
Statistical Service, or whether the benefit of continuous
officiation towards seniority was to be confined to the
period spent against the cadre post, this Court allowing the
appeals filed by the promotees and dismissing the writ
petition.
HELD : 1.01. This Court made the promotees regular
members of Grade IV Service from the day they are
continuously holding posts in the said Service. This Court
did not make any distinction between a cadre post or an ex-
cadre post. This Court laid-down in clear terms that the
promotees are entitled to count towards seniority the entire
period of service in Grade IV posts whether cadre or ex-
cadre. [960 H, 961 B-C]
1.02. This Court intended to fix the seniority of the
promotees on the basis of continuous length of service
irrespective of the fact whether the length of service was
against a cadre post or an ex-cadre post. The promotees
included in the Select List of 1970, 1982 and 1984 against
their quota vacancies have been given seniority from an
earlier date when they started officiating in a Grade IV
job. [968 C]
1.03. This Court has nowhere used the expression "cadre
post" or "ex-cadre post" in the judgment. Needless to say
that these words are the alphabet of service jurisprudence.
[968 D]
1.04. The word ‘post’ has been used to indicate an
appointment, a job or a position to which a person is
appointed. [968 E]
Narender Chadha and Ors. v. Union of India and Ors,
[1986] 1 SCR
959
211 - Explained.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 3264-
3265 of 1991
From the Judgment and Order dated 8.9.1989 of the
Central Administrative Tribunal, New Delhi in Original
Application No. 844 of 1986.
AND
Writ Petition (c) No. 178 of 1990.
(Under Section 32 of The Constitution of India)
Ms. Shyamla Papu, a. Subba Rao, C.V.S. Rao, Ms, A.
subhashini, Ms. C.K. Sucharita, K.T. Anantharamy and P.P.
Tripathi for the Appellants/Petitioners.
G.D. Gupta, S.K. Gupta, J.P. Misra-in-person, Devendra
Verma-in-person, T.R. Mohanty-in-person (NP) and D.K. Joshi-
in-person appeared for the Respondents.
The Judgment of the Court was delivered by
KULDIP SINGH, J. Promotees and direct recruits, in
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9
Government services, have an amazing capacity to rake-up old
seniority-disputes settled-finally by the courts of law.
This is the third round of litigation between such members
of the Indian Statistical Service. This Court in Narender
Chadha and Ors. v. Union of India & Ors. [1986] 1 SCR 211
finally decided the dispute regarding seniority between
promotees and direct recruits belonging to Indian Economics
Service and the Indian Statistical Service. This Court
directed the Union Government:
"to treat all persons who are stated to have been
promoted in this case to several posts in Grade IV
in each of the two Services contrary to the Rules
till now as having been regularly appointed to the
said posts in Grade IV under rule 8(1)(a)(ii) and
assign them seniority in the cadre with effect from
the dates from which they are continuously
officiating in the said posts. Even those promotees
who have been selected in 1970, 1982 and 1984 shall
be assigned seniority with effect from the date on
which they commenced to officiate continuously in
the posts prior to their
960
selection. For purposes of seniority the dates of
their selection shall be ingnored. The direct
recruits shall be given seniority with effect from
the date on which their names were recommended by
the Commission for appointment to such grade or
post as provided in clause (a) of Rule 9-C of the
Rule. A seniority list of all the promotees and the
direct recruits shall be prepared on the above
basis treating the promotees as full members of the
service with effect from the dates from which they
are continuously officiating in the posts."
[emphasis supplied]
The question for our consideration is whether the
expression "posts" used by this Court in the above quoted
directions means "cadre posts" or it includes the ex-cadre
posts held by the promotees in the Indian statistical
Service. In other words whether the benefit of continuous
officiation towards seniority is to be confined to the
period spent against the cadre post or the total of such
period whether against cadre or ex-cadre post.
The directions of this Court-quoted above-are crystal-
clear. It is a pity that the Central Administrative
Tribunal, New Delhi (Tribunal) viewed the above directions
in utter oblivion. This Court directed the Union of India:
(a) To treat all persons, stated to have been
promoted contrary to Rules, having been regularly
appointed to Grade IV of the Service; and
(b) Assign them seniority from the date of their
continuously officiation in Grade IV posts;
(c) Even those promotees who were selected for
regular promotion in 1970, 1982 and 1984 shall be
assigned seniority from the dates they commenced
officiation continuously in Grade IV prior to their
selection.
a bare look at each of the above directions makes it
clear that this Court made the promotees regular members of
Grade IV Service from the day they are continuously holding
posts in the said Service. This Court did not make any
distinction between a cadre post or an ex-cadre post. The
Court’s judicious conscious was touched by the fact that the
promotees were performing the duties of the jobs (posts) in
Grade IV Service and
961
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9
were drawing salary of the posts in the said Service for
over fifteen years and still they were treated ad hocs and
their appointments considered contrary to the Rules. This
Court found it to be wholly arbitrary and directed that they
be treated as regular member of the service from the day of
their continuous appointment. Even the promotees who were
regularly selected in the years 1970, 1982 and 1984 against
their quota posts were given benefit of their earlier
officiation which was obviously not against the posts meant
for the promotees: We are therefore, of the view that this
Court laid-down in clear terms that the promotees are
entitled to count towards seniority the entire period of
service in Grade IV posts whether cadre or ex-cadre. We may,
however, dilate upon the judgment in Chadha’s case a bit
more to clarify the point.
A Bench of this Court consisting of O. Chinnappa Reddy
and E.S. Venkataramiah, JJ. delivered the judgment in
Narender Chadha’s case on February 11, 1986. The direct
recruits filed a review petition which was dismissed. The
directions of this Court were implemented and a seniority
list of Grade IV of the Indian Statistical Service
(hereinafter called the Service) was issued on may 8, 1986.
Consequent promotions to Grade III were made vide
Notification dated May 22, 1986. The direct recruits in
Grade IV of the Service challenged the seniority list and
the promotions before the Tribunal on the ground that the
seniority list was in violation of the directions of this
Court in Narender Chadha’s case. It was contended on the
interpretation of this Court’s judgment that the promotees
who officiated against "cadre posts" in the Service, alone,
are entitled to the benefit of the said period towards
seniority and those who officiated against "Ex-cadre posts"
are not entitled to such benefit.
The promotees and the Union of India contended before
the Tribunal that this Court in Narender Chadha’s case based
its conclusion on the reasoning that the promotees were
holding posts in the Service for about 15 years and as such
they could not be treated as ad hoc appointees. This Court
did not make any distinction between holder of a cadre post
or an ex cadre post. The intention of the Court is obvious
from the plain language which makes it clear that the
promotees are to be treated regular members of the Service
from the date of promotion and as such whole of the period
of their service whether against cadre or ex-cadre post has
to be counted towards seniority.
962
The Tribunal allowed the application on the following
reasoning:-
"We have carefully considered the contentions
advanced on both sides and have also gone through
the judgment of the Supreme Court in Narender
Chadha’s case. We are required in the present case
to interpret the judgment of the Supreme court in
the light of the observations made and direction
given by their Lordships, In the entire judgment,
we do not find the use of any expression like ex-
cadre posts’ or ‘posts outside the cadre’.
Appointment to Grade IV of the Service were
considered in the context of conformity with the
Service rules or otherwise. Neither in the
averments made in the petition filed before the
Supreme Court nor in the judgment given by the
Hon’ble Supreme Court, we find any clue to reach he
conclusion that benefit of continuous officiation
in ex-cadre posts not included in Grade IV of the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9
Service, was either prayed for or ordained to be
given by the judgment.......We do not find
sufficient grounds to give a finding that Grade IV
posts in the judgment of Narender Chadha was used
in a generic sense, as contended by the learned
counsel for the respondents. We are conscious of
the fact that deprivation of the benefits of
seniority in respect of continuous officiation in
ex cadre posts may not be justified on grounds of
equity and discrimination. But in the present case,
we are bound by the judgment of the Hon’ble Supreme
Court and this Tribunal is not competent to widen
its scope to extend the benefit of continuous
officiation to incumbents who are not covered by
the said judgment."
We are of the view that the Tribunal has fallen into a
patent error. A look at the judgment would show that the
approach of the Tribunal was wholly perverse.
This Court examined the Scheme of the Indian
Statistical Rules, 1961 which lay down the constitution,
method of appointment and other conditions governing the
Service. It was noticed that at the initial constitution of
the Rules on November 1, 1961 there were 116 posts in Grade
IV and total of 185 posts in the Service. All the Rules were
noticed and after reproducing Rule 8 which provides for
appointments to the Service, it was observed as under:-
963
"Although Rule 8 provided that not less that 75 per
cent of vacancies in Grade IV should be filled up
by direct recruitment..........no direct
recruitment was resorted to till about the year
1968. In the meanwhile a large number of persons in
the feeder posts were appointed to the posts in
Grade IV from time to time from the year 1962
onwards although the orders promoting them stated
that they had been promoted only temporarily. It is
not disputed that all those promotees have been
holding those posts continuously till now without
being reverted to the feeder posts from which they
had been promoted. Some have retired from those
posts on attaining the age of superannuation.
Thereafter the Bench noticed the fact large number of
posts meant for the direct recruits were manned by the
promotees for a period of more than 15 years. The Bench
observed as under:-
"The position in the Indian Statistical Service was
more or less the same. As against a total of 303
vacancies meant for direct recruits between the
year 1964 and 1984 only 275 direct recruits were
appointed. In this department also the posts which
remained unfilled had been held by the persons who
were departmental candidates. It is alleged in the
counter-af-fidavit filed on behalf of the Union of
India of which the deponent is Shri P.G. Lele,
Deputy Secretary in the Department of Personnel and
Administrative Reforms that many of the
departmental candidates had been allowed to hold
posts including in Grade IV of the aforesaid
Services purely on ad hoc and ex gratia basis. The
relevant part of the counter-affadavit is to be
found in paragraphs 21 to 24 thereof. It is
unfortunate that even though the promotees have
been discharging their duties to the best of their
ability and receiving salary and allowances from
the Government for the services rendered by them,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9
it is alleged in the course of the said counter-
affidavit that what was being paid to them was by
way of grace. This statement adds insult to
injury. If the Government felt that they were not
competent to discharge their duties and they had
not been appointed permanently to the posts held by
them, it was open to it to revert them to their
posts from which
964
they had been promoted leaving it open to them to
question the orders of reversion in Court. The
Government was in need of their services and the
petitioners have been holding these posts for
nearly 15 to 20 years. It is not fair to say at
this distance of time that the Government was only
keeping them in their posts as a matter of grace.
Be that as it may, it is seen that the Departmental
Promotion Committee met only thrice between 1965
and 1984, i.e. 1970, 1972 and 1984 although under
the rules and instructions issued by the Central
Government on the advice of the Union Public
Service Commission, the Departmental promotion
Committee had to meet annually.
It is thus obvious that the Bench was fully conscious
of the total number of posts in the Service during the
period from 1964 to 1984, the total number of direct
recruits occupying the posts the fact that large number of
promoters were occupying the posts meant for direct recruits
and the Departmental promotion Committee had not met for
years together to fill the posts meant for the promotees.
The Bench was thus fully aware of the provisions of the
Rules and their actual application to the cadre and ex-cadre
posts during the period from 1961 till 1984. It is clear
from the minute factual details adverted to by the Bench,
that this Court gave benefit of total officiation to the
promotees whether against a cadre post or a non cadre post.
The problem faced by this Court in Narender Chadha’s case
was noticed as under:-
"But we are faced in this case with the problem of
resolving conflicts which have arisen on account of
a violent departure made by the Government from the
Rules of recruitment by allowing those who were
appointed contrary to the Rules to hold the posts
continuously over a long period of time. The
question is whether after such a long period it is
open to the Government to place them in seniority
at a place lower than the place held by persons who
were directly recruited after they had been
promoted, and whether it would not violate Articles
14 and 16 of the Constitution if the Government is
allowed to do so. Promotions of officers have been
made in this case deliberately and in vacancies
which have lasted for a long time.......It is
significant that neither the Government has issued
orders of reversion to their former posts nor has
anybody
965
so far questioned the right of the petitioners to
continue in the posts which they are now holding.
It would be unjust to hold at this distance of time
that on the facts and in the circumstances of this
case the petitioners are not holding the posts in
Grade IV. The above contention is therefore without
substance. But we, however, make it clear that it
is not our view that whenever a person is appointed
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9
in a post without following the Rules prescribed
for appointment to that post, he should be treated
as a person regularly appointed to that post. Such
a person may be reverted from the post. But in a
case of the kind before us where persons have been
allowed to function in higher posts for 15 to 20
year with due deliberation it would be certainly
unjust to hold that they have no sort of claim to
such posts and could be reverted unceremoniously or
treated as persons not belonging to the Service at
all, particularly where the Government is endowed
with the power to relax the Rules to avoid unjust
results. In the instant case the Government has
also not expressed its unwillingness to continue
them in the said posts. The other contesting
respondents have also not urged that the
petitioners should be sent out of the said posts.
The only question agitated before us relates to
the seniority as between the petitioners and the
direct recruits and such as question can arise only
where there is no dispute regarding the entry of
officers concerned into the same Grade. In the
instant case there is no impediment even under the
Rules to treat these petitioners and others who are
similarly situated as persons duly appointed to the
posts in Grade IV because of the enabling provision
contained in the rule 16 thereof. Rule 16 as it
stood at the relevant time read as follows:
"*The Government may relax the provisions of these
rules to such extent as may be necessary to ensure
satisfactory working or remove inequitable
results.*" (emphasis supplied)
It is obvious from the quote above that the Court was
primarily concerned with the question of granting the
promotees the benefit of their long period of service in
Grade IV posts for the purposes of seniority. The promotees
were appointed 15 year back to the cadre or ex-cadre posts
in Grade IV, had been doing the same work as regularly
appointed Grade IV officers were doing, were drawing the
same salary and were treated at per
966
with other regularly appointed officers. Is there any
justification to deprive them the benefit of 15 year of
service on the ground that they were working against the ex-
cadre posts. It was projected before this Court that the
appointments to Grade IV of all the promotees whether
working against cadre post or ex-cadre posts were contrary
to the Rules. In that situation where is the justification,
after all the promotees are regularised by this court, to
hold that only those who are regularised while working
against cadre posts, are to be given the benefit of such
regularisation towards seniority. Doing that would be wholly
arbitrary. The Tribunal itself observed:-
"We are conscious of the fact that deprivation of
the benefits of seniority in respect of continuous
officiation in ex cadre posts may not be justified
or grounds of equity and discrimination. But in the
present case, we are bound by the judgment of the
Hon’ble Supreme Court and this Tribunal is not
competent to widen its scope to extend the benefit
of continuous officiation to incumbents who are not
covered by the said judgment."
But on the basis of patently illogical reasoning the
Tribunal imputed such a conclusion which "may not be
justified on grounds of equity and discrimination" to this
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9
Court on an erroneous interpretation of the judgment in
Narender Chadha’s case. The least we can say is that the
Tribunal has acted in a wholly perverse and wayward manner.
This Court further noticed the enormity of the
prejudice which was likely to be caused to the promotees in
case they were denied the benefit of their ad hoc service in
the following words:-
"The enormity of the prejudice that is likely to be
caused to the petitioners and others who were
similarly stituated can be demonstrated by setting
out the effect of stiking to the quota rule as
found in rule 8(1)(a) even though there has been a
deliberate deviation from it. The result of
applying the quota rule would be as follows:
Petitioner No. 1 who was promoted to Grade 17 on
November 6, 1965 would be junior to a direct
recruit of 1974 batch. Petitioner No. 3 who was
promoted to Grade IV on March 22, 1966 would become
junior to a direct recruit of 1979 batch.
Petitioner No. 6 who was promoted to Grade IV post
in July 1, 1966 would become junior to direct
967
recruits of 1982 batch. Petitioner No. 10 who was
promoted to Grade IV on May 18, 1968 would become
junior to direct recruits of 1982 batch.
Petitioners Nos. 16 to 18 and 21 to 25 would
continue to be treated as ad hoc appointees and
will be junior to every body appointed till now
into the service as they cannot be fitted any where
even though they have put in 9 to 15 year of
service in Grade IV. These startling results ought
to shock anybody’s conscience. The only just
solution to this problem is to treat the
petitioners as persons duly appointed to the
Service with effect from the day on which they were
promoted to the Grade IV posts.
As observed in D.R. Nim, IPS v. Union of India,
[1967] 2 SCR 325 when an officer has worked for a
long period as in this case for nearly fifteen to
twenty years in a post and had never been reverted
it cannot be held that the officer’s continuous
officiation was a mere temporary or local or stop
gap arrangement even though the order of
appointment may state so. In such circumstances the
entire period of officiation has to be counted for
seniority. Any other view would be arbitrary and
violative of Articles 14 and 16(1) of the
Constitution because the temporary service in the
post in question is not for a short period intended
to meet some emergent or unforeseen circumstances.
Clause (b) of rule 9C of the Rule which deals with
the question of seniority promotees becomes
irrelevant in the circumstances of this case as
regards the promotees who have been holding the
posts from a long time as stated above." [emphasis
supplied]
This Court has, in simple language and plain words,
expressed its verdict in the ‘quote’ above. It needs no
clarification much less any interpretation. It only needed a
judicial-look which the Tribunal failed to do.
Regarding the promotees who were appointed in their
quota this Court observed as under:-
"We are aware that the view we are taking may upset
the inter se seniority between those promotees who
were included in the Select List of 1970, 1982 and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9
1984 and those who were included later on or who
have not been included at all till now. The
existence of this possibility should not deter us
from adopting
968
a uniform rule in the case of all promotees and
direct recruits to adjust the equities amongst them
as regards their relative seniority in the light of
the violent departure made by the Government both
as regards direct recruitments and promotions which
it had to make every year under the Rules. The
prejudice which the promotees included in the
Select Lists might suffer is marginal and has to be
ignored."
The above paragraph makes it further clear that this
Court intended to fix the seniority of the promotees on the
basis of continuous length of service irrespective of the
fact whether the length of service was against a cadre post
or an ex-cadre post. The promotees included in the Select
List of 1970, 1982 and 1984 against their quota vacancies
have been given seniority from an earlier date when they
started officiating in a Grade IV job.
This Court has nowhere used the expression "cadre post"
or "excadre post" in the judgment. Needless to say that
these words are the alphabet of Service jurisprudence. In
Narender Chadha’s case it was legally impossible to make any
distinction on the basis of cadre or ex-cadre posts. In any
case if this Court intended to do so it would have done it
in clear terms. The word ‘post’ has been used by this Court
to indicate an appointment, a job or a position to which a
person is appointed.
We, therefore, allow the appeals, set aside the
judgment of the Tribunal and dismiss the applications filed
by the respondents before the Tribunal. The writ petition is
dismissed. There shall be no order as to costs.
V.P.R. Appeals allowed
Petition dismissed.
969